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A HfP reader sues BA when it refuses downgrade compensation on a 241 voucher

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A question that often gets asked when the conversation moves to EC261 compensation (2019 No.278 now that we have left the EU) is what value the British Airways American Express companion voucher has in the case of downgraded or cancelled flights.

British Airways continues to insist that the companion voucher has no value, since it is simply a ‘plus one’ for an Avios booking.

Common sense suggests otherwise, and indeed we know that British Airways has lost numerous CEDR and MCOL arbitration cases with HfP readers over the years on this point.

For clarity, we do not know of ANY case where British Airways has actually won in court or arbitration on this issue. You may wonder why it continues to force readers to take this route to get the compensation they are legally due.

We were recently contacted by a reader who had just successfully won a dispute in Court. As the case had progressed to Court with BA unwilling to settle, there was no confidentiality undertaking signed. For once, we are free to discuss it.

Over to our reader:

“I was due to travel on a long-haul flight with my wife and infant. We had booked a reward flight in Club World using a Companion Voucher. We were downgraded without notice at the gate and had a second set of boarding passes issued with seats in World Traveller Plus. This was after a two hour delay waiting at the gate.

The BA staff tried to offer cash compensation of £200 each when we expressed our frustration. We rejected this and refused to travel on another day as we had another flight to catch at the destination. We were informed that BA would contact us within seven days of the flight to discuss the refund due, but no contact was made.

Over the next six months, 16 emails were exchanged between myself and British Airways’ customer relations team as I tried to seek the correct compensation.

I had calculated the correct compensation due under EC261 for downgrades. Based on my understanding that I was entitled to 75% of the price of the ticket and bearing in mind it was an Avios purchase, I was seeking:

Outbound leg was 90,000 avios (peak pricing)
75% of 90,000  = 67,500 Avios per adult
75% of 9,000  = 6,750 Avios per infant (infants pay 10%)
Total due:  141,750 Avios downgrade compensation

The total refund in Avios would be 141,750 for the three of us.

Unfortunately, British Airways rejected my calculation. As I wasn’t making progress, I decided I had no option but to take British Airways to court.

I wrote a detailed letter to BA before starting my action and subsequently issued a claim in the Small Claims Court using MCOL, the Money Claims Online Service. This was relatively straightforward and the online portal is quite user-friendly. You can do this yourself and do not need to appoint a lawyer.

BA 787

At this point, British Airways offered me compensation I was legally due of 67,500 Avios for my ticket and 6,750 for our child.

However, it disputed my wife’s refund since it was a Companion Voucher, i.e. the companion ticket holder ‘did not pay a fare,’ and therefore not entitled to compensation. They were essentially arguing that the voucher had no value.

We argued that under Article 10.2(c) of EU Regulation 261, we were both entitled to compensation of 75% of the price of our tickets for the downgrade.

Article 10 of the Regulation relates to upgrading and downgrading. It states:

2. If an operating air carrier places a passenger in a class lower than that for which the ticket was purchased, it shall within seven days, by the means provided for in Article 7(3), reimburse:

(a) 30% of the price of the ticket for all flights of 1500 kilometres or less, or

(b) 50% of the price of the ticket for all intra-Community flights of more than 1500 kilometres, except flights between the European territory of the Member States and the French overseas departments, and for all other flights between 1500 and 3500 kilometres, or

(c) 75% of the price of the ticket for all flights not falling under (a) or (b), including flights between the European territory of the Member States and the French overseas departments

We also referred specifically to Article 3.3 of the Regulation which sets out very clearly that:

‘This Regulation shall not apply to passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public. However, it shall apply to passengers having tickets issued under a frequent flyer programme or other commercial programme by an air carrier or tour operator.’

Clearly, EU261 applied to companion vouchers. Given that you can only get a companion voucher after a £10,000 credit card spend and the associated £195 fee for the card itself, we were adamant that British Airways was wrong in giving it a nil value.

British Airways BA 777X 777 9X

It is worth noting that within BA’s court documents they referred to the “Steef Mennens v Emirates Direktion für Deutschland” case.

This was an attempt to demonstrate that a passenger who did not “pay a fare” was not entitled to any compensation. We asserted the facts of this case were completely different and could not be compared to our case, on the basis a Companion Voucher (with intrinsic value) was used to purchase a ticket. This view was accepted by the court.

We were successful at trial and were somewhat surprised that BA had not offered to settle prior to the hearing.

In addition to compensation for my wife’s downgraded ticket, we were also granted costs to cover the claim fee and hearing fee. The cash value of Avios was based on the cost of buying Avios directly from British Airways – so 1.6p per Avios.

We were therefore awarded £1,080 and 74,250 Avios, as well as our costs.

The judge agreed that it was acceptable for compensation on my ticket and my child’s ticket (but not my wife’s companion ticket) to be in Avios since this was the means of payment.

The £1,080 comes from multiplying 67,500 Avios x BA’s selling price of 1.6p per Avios.

[HfP edit: it is very rare for CEDR or MCOL to make a non-monetary award against British Airways. In every previous case we have seen, all of the compensation was paid in cash based on 1.6p per Avios]

It was crucial that we laid out the calculation to value the Companion Voucher, and therefore the compensation in monetary terms since we were using Money Claim Online.

My advice would be that you can most certainly pursue compensation for a downgrade on a companion voucher but it is imperative to set out your claim very clearly.

We put a lot of time and effort into researching the regulations, reading various terms and conditions and drafting the court documents. In the end it took 14 months from the date of the flight until the court hearing came around, but our perseverance and hard work paid off.”

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Comments (193)

This article is closed to new comments. Feel free to ask your question in the HfP forums.

  • Peter Cleary says:

    We (family of 4) were downgraded from F to J LHR to AUH. 2 J cash upgraded and an 1 F avois + 1 companion voucher. I knew there was a problem the day before when I couldnt check in. I called BA and said just tell me now if theres a problem dont wait until the airport. Aircraft didnt have F (they knew for 3 weeks) we were offered 200 each I refused. BA put all 4 of us on Etihad F best thing that ever happened! Never used BA since though return in J was terrible lounge checkin etc terrible

    • Charlieface says:

      And did you put in a claim?

      • meta says:

        They put his family on Etihad F. Under UK261 you are also entitled to reroute under comparable transport conditions. So if they want to downgrade you could try and see if BA are willing to put you on another airline in the same class.

  • David Marshall says:

    I’m amazed, well not really, that BA would expend so much time and cost defending this claim given the eventual settlement which they must surely have had an idea of. It strikes me as an example of the claims team being divorced from what’s sensible to the point where they have no sense of cost versus benefit and to hell with customer relations damage. 10/10 for the reader’s success but should not have been needed.

    • Chrisasaurus says:

      How many claims do you think they have to pay as a % of legitimate cases that could be brought, not just the ones that are…

      Not saying I agree with the principle- far from it – but this works very nicely for BA as the worst case scenario is merely what they would have paid plus change

      • Matty says:

        And that’s the point here – not the individual success but the sharp practice of BA and the amount of times they manage to get away with it. Compare and contrast the comments the other day in the class action thread about BA going through a tough time and it not being the right thing to pursue the airline in these hard times. The airline doesn’t give a shit about you, your hard earned Avios, your personal aspirations, nor your once-in-a-lifetime trip that you’d planned and dreamed of for months even years.

      • Polly says:

        It beggars belief that they would fight it all the way, knowing they have had to give in so many times before. But maybe they rely on folks giving up part way through the process. It’s only the ones in the know like hfp and the likes who really know their rights. They rely on the gen pop happily accepting their £200 compo pp etc. Shame on BA.
        But congrats on getting the right result, and beating BA at its own game.

        They totally refused to put us on QR to KUL when they cancelled our January flights. Insisted we could chose a destination within 300 miles of kul…so, out to SIN and bk from HKG, kept quoting it’s a sale price! And the 1 year from booking date issue. So with a 241 and 1/4 the avios, not really complaining. Also, we now fly from LHR instead of JER, and BA didn’t adjust the taxes! And fees. So, a win in all but name, l suppose.

  • Aston100 says:

    So is it possible for some kind of class action now?
    BA deliberately lie through their teeth.

  • Deasine says:

    Is there a specific court case name that could be cited?

    • cinereus says:

      a) Doesn’t form a precedent.
      b) These judgments aren’t published anyway.

  • John P says:

    Opinions would be appreciated on our situation.
    We booked 2 first class returns using an Amex companion voucher, then the cabin was withdrawn on the route due to Covid. We really wanted to fly first and so have moved the flights as late as BA would let us, in the hope that the first cabin is re-instated.
    We did ask if we could at least use the lounge with the first cabin and select seats for free in the event we didn’t manage to get first seats again.

    BA were pretty unhelpful, and said no to everything, including the first few calls where they said no refund was due. My question is, if we end up flying in the downgraded cabin, having changed our dates, are we still eligible for EU 261 downgrade refund?

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